¶1Dissenting Opinion.
¶2— I understand the demurrer confesses the truth of these material allegations; that the judge of the Lawrence Circuit Court appointed the Honorable John C. Robinson, judge pro tempore, with authority to try a special case; that Judge Robinson entered upon the trial, but before the close of the evidence retired from the bench and *475called to it A. C. Yoris, Esq., who .presided as judge until its close; that Mr. Yoris received the verdict on the 3d day of January, 1881, and then continued the cause until January 26th', a time beyond the term, when Judge Eobinson resumed his seat upon the bench and pronounced judgment on the verdict.
¶3I think the proceedings were co'rom non juclice and void.
¶4Judicial authority can not be delegated. It is true that the statute authorizes the appointment of special judges, but this is not strictly a delegation of judicial power. The right, however, to appoint a judge pro tempore is vested in the judge of the court, and the person whom he appoints can not delegate his authority. The attempt of Judge Eobinson to delegate judicial powers to Mr. Yoris was utterly futile.
¶5The failure of a judge pro tempore to appear, or to conduct the trial to a final termination, returns the cause to the regular judge. Singleton v. Pidgeon, 21 Ind. 118; Glenn v. State, ex rel., 46 Ind. 368; Greenup v. Crooks, 50 Ind. 410. The instant, therefore, that Judge Eobinson abandoned the case the judge by whom he was appointed was re-invested with full jurisdiction and authority, and Judge Eobinson stripped of every vestige of authority. His attempt to make Mr. Yoris judge pro tempore was fruitless, and when the latter seated himself upon the bench there was no court because no judge. There was no color of authority in Mr. Yoris.
¶6The investigation leads us back of the record, for the inquiry is not, was there a record, but was there a court capable of making a record? I suppose that if it appear that there is no judge the question of what the record shows or does not show is not of controlling importance. A record, in the true sense, can not be conceived as existing without a court competent to make one.
¶7I can not assent to the prevailing opinion.
¶8Niblage, J., concurs in the opinion of Elliott, J.